MORTGAGE WAREHOUSE LINE AGREEMENT
FIRST SAVINGS BANK, FSB
ARLINGTON, TEXAS
and
______
This mortgage warehouse line agreement (the “Agreement”) supersedes any previous agreement and is entered into by ______
(“the Company”), a mortgage company organized under the laws of the State of ______
and having its principal place of business at ______
and First Savings Bank, FSB (“the Lender”), 301 South Center Street, Arlington, Texas 76010 on this _____ day of ______, ______. Pursuant to the terms of this Agreement, the Lender may, in its sole discretion, advance funds on the Company’s behalf to fund loans secured by one-to-four family residential dwellings, provided that such loans are conforming loans eligible for purchase under Government National Mortgage Association (“GNMA”), Federal National Mortgage Association (“FNMA”), Federal Home Loan Mortgage Corporation (“FHLMC”), or approved institutional investor criteria. Each loan made by Lender hereunder must be secured by a first or second lien on the land on which the dwelling is situated (“Mortgages”); in addition, and subject to the terms of this Agreement, the Company shall have a written Take Out Letter (a “Take Out Letter”) consistent with the format on EXHIBIT A issued by an investor (the “Investor”) approved by the Lender to purchase such Mortgages. [First Savings Bank, FSB is referred to as Lender’s Warehouse Bank and Company is referred to as Lender in the attached EXHIBIT A, Take Out Letter.]
The Company and the Lender mutually contemplate that the Agreement describes a warehouse line (the “Warehouse Line”) pursuant to which the outstanding balance of the aggregate fundings by the Lender for Mortgages can be as much as $1,000,000.00 (one million dollars) from time-to-time outstanding, although the Lender also reserves the right to reduce that limit by providing thirty (30) days prior written notice thereof to the Company. The Company will, in its discretion, from time to time submit Mortgages to be made under this warehouse line, and, subject to the regulatory requirements of the Office of Thrift Supervision (the “OTS”), so long as said Mortgages, as well as the Company are, in all respects, in compliance with the terms of this Agreement, the Lender may, in its sole discretion, fund such Mortgages. The Lender shall reserve the right to terminate immediately this Warehouse Line with the Company upon: (i) an order or directive from (a) the Office of Thrift Supervision, or (b) any other bank regulatory authority, (ii) the justifiable suspension of the Company by any of its institutional end-loan Investors; (iii) a material, negative change in the Company’s financial condition; (iv) the Company’s failure to comply with the terms of this Agreement; or (v) the Company’s failure to comply with the underwriting, closing delivery and funding requirements of its institutional end-loan Investors. Furthermore, the Lender reserves the right to terminate this Agreement should the sale of any loan or loans scheduled for purchase by the Investor fail to be consummated within sixty (60) days after the date on which the loan is funded by the Lender. Company agrees to provide quarterly financial statements within thirty (30) days of quarter end and to provide audited financial statement within ninety (90) days of each year end.
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This Warehouse Line is established and will operate upon and be subject to the following terms and conditions:
1.Mortgage Funded. The Company shall provide a Funding Request for each Mortgage to the Lender under this Warehouse Line in the form attached as EXHIBIT B to this Agreement with all required enclosures and all blocks and blanks in it and its enclosures properly completed. The Lender may accept any Funding Request and fund the Mortgages by funding the amount stated in the Take Out Letter and by providing money for the original funding of the Mortgages directly to the Settlement Agent or other person or entity handling the closing (the “Closer”).
2.Periodic Paydown of Warehouse Line. The Company will take all steps necessary to:
a. assist Investor to close, fund, document and complete all Mortgages funded by the
Lender under this Agreement and their related mortgage files;
b. assist in the timely completion of the sale as whole loans of all such Mortgages in
accordance with the related Take Out Letters;
c. cause the entire sale price due from such Mortgages sold by Company to Investor to be transferred by Fed funds wire directly to the Lender or its designated bank.
Without limitation of the foregoing provisions of this paragraph, promptly after Mortgages are funded by the Lender, the Company shall (1) direct the Investor which issued the Take Out Letter to pay the entire amount of the purchase consideration for those Mortgages directly to the Lender to reduce the Warehouse Line and to confirm receipt of that direction directly to the Lender and (2) not cause or permit any cash proceeds of any such Mortgages to be issued to, registered in the name of or paid to anyone other than the Lender. If the Company, or any entity controlled by or under common control with the Company shall receive the proceeds from an Investor’s purchase of Mortgages, then such funds shall be held by the Company in trust for the benefit of the Lender and shall be remitted to the Lender as soon as possible, but in no event later than two business days after receipt by the Company or any entity controlled by or under common control with the Company. If for any reason (other than the negligent acts or omissions of the Lender, any such Take Out Letter is not completed on or before or five (5)business days after its delivery to Lender, then the Company agrees to promptly obtain and furnish the Lender a replacement Take Out Letter acceptable (and issued by an Investor acceptable) to the Lender and having characteristics all of which can be satisfied by those Mortgages (a “Qualified Substitute Takeout”).
3.Interest Rate for Warehouse Line.
(i) the interest rate for the Warehouse Line will be the Wall Street Journal Prime Rate + 1% percent for the actual number of days that the Mortgage is funded by the Lender. A Mortgage will be funded by Lender when Lender issues a cashier check, bank check, or fed wire transfer to fund the Mortgage.
(ii) a service fee of $75 per note funded will also be charged to the Company.
The Lender may elect to increase or decrease the interest rate and service fee cost amount from time to time by giving the Company written notice of the change(s) and by specifying a date when such change(s) will become effective which is at least thirty (30) days after such notice,
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and any such change(s) so made shall be effective only as to Mortgages funded by the Lender on or after the effective date of such change(s).
On or before the fifth (5th) day of each month, Lender shall provide Company with a monthly statement reflecting all sums due and owing to Lender by Company (interest and service fees). Such sums are due upon receipt of the statement.
4.Security Agreement. To secure performance of all of the Company’s obligations under this Agreement, the Company hereby GRANTS the Lender a security interest in all of the Company’s present and future rights and interests in and to the Company’s share of all such Mortgage sale proceeds, if any. All such security interests granted hereby shall be first and prior and shall continue in full force and effect until all of the Company’s obligations to the Lender under this Agreement has been fully performed and satisfied.
5.Obligation on any Transaction Failure. If it is determined that for any reason an act of fraud has occurred in the origination of any loan funded by the Lender or if any underwriting deficiencies have occurred which have prevented a Mortgage from being purchased by the Investor, the Lender will have full legal and financial recourse against the Company.
6.Operational Matters. The following agreements relate to the operation of this Warehouse Line:
a. Endorsement and Closing Instructions. The Company will endorse in blank the promissory note, in a manner acceptable to the Investor, to evidence each Mortgage which is the subject of an accepted Take Out Letter when (or before) the note is executed by its maker, and the Company hereby declares its intent that each such endorsement be effective as to each such
note from such note’s inception, regardless of when the endorsement is actually made. The Company will (i) ensure that the Closer of each such Mortgage has received from the Investor written instructions for the closing of the Mortgage transaction and will not give any rescinding, inconsistent or conflicting instructions, (ii) take all other steps required to ensure that all such Mortgages are assigned to the Investor by a written assignment in a form which is recordable in the jurisdiction where the real property covered by the Mortgage is located, and that the original note (endorsed as stated above) is actually delivered to the Investor by the Closer immediately after the Mortgage is funded, and that the Mortgage and all of its related documentation are delivered to the Investor to be physically held by the Investor until they are funded by the Investor pursuant to the Take Out Letter.
b.Investor Agreements. Company agrees to furnish the Lender with copies of all Investor agreements. When new Investors are to be considered by the Lender, Company must furnish the Lender with all required information about the proposed Investor, including the investor agreement, at least 15 days prior to the funding of a loan that is to be made by the Lender involving the new Investor.
7.Representations, Warranties and Covenants. The Company represents, warrants and covenants (and such representations and warranties shall be true at the time any Mortgage
as funded by the Lender under this Warehouse Line) as set forth below, and further warrants that each Mortgage meets the underwriting requirements of the Investor.
a.Blank Assignments’ Validity. The written assignment of each Mortgage in blank from the Company is valid and effective, and the Lender and its successors, substitutes and assigns are each duly authorized to complete the blanks in each such assignment and to take such other steps as are necessary or appropriate, in the judgment of the party acting, to transfer the
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Mortgage, as contemplated by the Power of Attorney form attached as EXHIBIT C (one or more originals of which and any supplement to which the Lender shall from time-to-time request the Company to execute, and which the Company hereby agrees to execute).
b.Documents Genuine, Statements True. All documents submitted in connection with each Loan Request are genuine, the statements contained in each schedule of Mortgages submitted to the Lender and all other statements and representations as to any such Mortgages are accurate, true and correct in all material respects and meet each of the requirements and specifications of this Agreement.
c.Delivery Risk and Responsibility. All deliveries of all Mortgage documents shall be at the Company’s risk and the Company’s responsibility, and the Company agrees to indemnify the Lender and hold it harmless from all bona fide and reasonable loss, cost or expense (including reasonable attorneys’ fees) arising out of or incurred in connection therewith, except only for such loss, cost or expense, if any, that results solely from the Lender’s negligent acts or omissions.
d.Each Mortgage Valid. Each Mortgage funded by the Company has been duly executed by the mortgagor(s), acknowledged and recorded (or duly sent by the Closer to be recorded) and is valid and binding upon such mortgagor(s) and enforceable in accordance with its terms.
e.Funding to Settlement Agent. All fundings will be to a Settlement Agent. Said Settlement Agent must provide Lender with an Insured Closing Letter from its underwriter prior to loan funding.
f.Mortgages Comply with Law. As to each individual Mortgage funded by Lender, all applicable federal, state and local laws, rules and regulations have been complied with, including, but not limited to, the Real Estate Settlement Procedures Act, the Equal Credit Opportunity Act, the Flood Disaster Protection Act, the Fair Housing Act, the Truth-in-Lending Act of 1968, the Depository Institutions Deregulatory and Monetary Control Act of 1980, all as amended, and regulations issued pursuant to each of them; all usury laws and limitations; all conditions within the control of the Company as to the validity of the insurance or guaranty required by the National Housing Act of 1934, as amended, and the rules and regulations thereunder, and the Servicemen’s Readjustment Act of 1944, as amended, and the rules and regulations thereunder; and all requirements of the mortgage insurance companies or other insurers have been properly satisfied, and such insurance or guaranty is valid or enforceable.
g.Title Insurance. There is in force a paid-up title insurance policy on each such Mortgage issued by an accredited title insurer in an amount at least equal to the outstanding principal balance of such Mortgage. This title insurance policy has been issued by a title insurance underwriter duly authorized to issue title insurance in the state where the real property covered by such Mortgage is located.
h.Hazard Insurance. Hazard insurance policies meeting the requirements of each such Mortgage and the Investor’s requirements are in force.
i.Servicing Not Otherwise Pledged. The Company has not directly or indirectly pledged any servicing rights with respect to any Mortgages made by the Lender under this Agreement to any person or entity other than the Lender, nor will the Company do so without the Lender’s prior written approval.
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j.Notification of Mortgage Defaults. The Company agrees to immediately notify the Lender in writing upon learning of any default under any of the Mortgages purchase (or agreed to be purchased) by the Lender or of the institution of any proceeding before any court or other government authority in respect of a claimed violation by the Company or any other person of any statute, rule or regulation relating to any such Mortgage or a claimed defense of offset to any Mortgage.
k.Appraisals Satisfy Applicable Requirements. A written appraisal of the real property securing each such Mortgage has been prepared by a duly-licensed appraiser and satisfies all requirements for any applicable VA guaranty, FHA insurance or private mortgage
insurance and all requirements imposed by the Investor which issued the Take Out Letter covering such Mortgage.
l.Quality Control Reports. The Company agrees at its own cost to provide periodic reports to the Lender as requested by the Lender from time to time, of the Company’s Mortgage loan origination.
m.Organization: Good Standing. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (ii) has the full legal power and authority to own its property and to carry on its business as currently conducted; and (iii) is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction in which the transaction of its business makes such qualification necessary.
n.Authorization: No Conflict. The Company has the power and authority to execute, deliver and comply with the terms of this Agreement. The Company’s execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary corporate action on the Company’s part (none of which action has been modified or rescinded and all of which is in full force and effect).
o.Enforceability. This Agreement, as well as all other documents executed and/or delivered herewith, constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms.
p.Approvals. The Company’s execution and delivery of this Agreement and the Company’s performance of its obligations do not require any license, consent, approval or other action of any court or other governmental authority other than those which have been obtained and remain in full force and effect.
q.Financial Condition. The Company’s financial statements respectively, heretofore furnished to the Lender, fairly present the Company’s financial condition and the
results of the Company’s financial condition and the results of the Company’s operations as of and for the fiscal period ended on the respective dates of such financial statements. On the dates of such financial statements, the Company was solvent (i.e., able to pay its debts as they mature and having assets with value greater than its liabilities). Such financial statements were prepared in accordance with generally accepted accounting principles. Since the date of such financial statements, nothing has occurred which has had a material adverse effect on the Company’s operations or financial condition nor is the Company aware of any state of facts which (with or without notice or lapse of time or both) would or could result in such a material adverse effect, and the Company is solvent as of the date of this Agreement and will maintain its solvency on a continuing basis.